Citation Nr: 0004285
Decision Date: 02/17/00 Archive Date: 02/23/00
DOCKET NO. 98-20 309 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Whether a May 20, 1992 decision to reduce the evaluation of
the veteran's service-connected post-traumatic stress
disorder (PTSD) constituted clear and unmistakable error
(CUE).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Solomon J. Gully, IV, Associate Counsel
INTRODUCTION
The veteran had active service from March 1963 to August
1967, reserve duty from April 1970 to April 1971, and active
duty from April 1971 to February 1974.
This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from an October 1998 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Manchester, New Hampshire, which denied the
veteran's claim that there was CUE in the May 1992 rating
decision that reduced the 100 percent evaluation then in
effect for PTSD to a 50 percent rating, effective August 1,
1992.
FINDINGS OF FACT
1. In a May 1992 rating decision, the RO reduced the 100
percent rating in effect for PTSD to a 50 percent rating,
effective August 1, 1992.
2. The reduction was based on one examination that failed to
demonstrate material improvement in the veteran's disability
under the ordinary conditions of life.
CONCLUSION OF LAW
There was CUE in the May 1992 rating decision, and the 100
percent evaluation for PTSD is restored, effective August 1,
1992. 38 C.F.R. §§ 3.105(a), 3.343, 4.130, 4.132 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Historically, a May 1989 rating decision granted service
connection for PTSD, and assigned a 100 percent evaluation
pursuant to the provisions of Diagnostic Code 9411 of the
VA's Schedule for Rating Disabilities, 38 C. F. R. Part 4.
This award was based on private treatment records reflecting
that the veteran had been on total disability due to PTSD
since November 1987, and indicating that he should not return
to work.
On VA examination in June 1991, the veteran reported that his
PTSD symptomatology was "either worsening or staying the
same." He related that his anxiety and panic attacks were
less frequent, but remained intense. The veteran explained
that while he previously experienced these attacks six times
a day, he currently experienced one or two attacks a day. He
stated that his depression and survivor guilt had increased
in severity. He experienced recurrent nightmares, and his
sleep was "extremely disrupted." His intrusive thoughts
were "worse than ever," and he continued to experience
flashbacks. The veteran reported an inability to
concentrate, and a lack of energy.
On mental status examination, the veteran spoke slowly and
deliberately, and had a "somewhat hostile exterior." He
very quickly dissolved into tears when describing his current
situation. His eye contact was appropriate, his manner was
intense, and there was no pressured speech. His attire was
neat and clean. The veteran described his mood as anxious
and depressed, and his affect was consistent with this
description. His thought process was entirely logical and
coherent without any evidence of psychosis. His thought
content was remarkable for stress and agitation associated
with Vietnam episodes. The veteran described a sense of
foreshortened future, and felt depressed about "ever getting
over this problem." He described daily suicidal ideation
without intent or plan, with his family as the deterrent. He
denied any homicidal idea, intent or plan. Cognitively, the
veteran was entirely intact. He was alert and oriented to
person, place and time. The report notes that he seemed to
be of normal or slightly superior intelligence. According to
the record, the veteran described an inconsistent
neurovegetative picture for depression. He reported a normal
appetite, increased libido, decreased concentration, was
tired in the morning, and was fatigued throughout the day.
The diagnostic impression was AXIS I: PTSD. AXIS II: None.
AXIS III: None. AXIS IV: 3 moderate psychosocial stressors.
AXIS V: Current global assessment of functioning (GAF) 60-70.
The examiner opined that the veteran "still suffer[ed] from
PTSD to the same, if not to a greater degree than what was
described in 1989." However, he reported that the veteran
was "going back to work not withstanding." The physician
concluded that the veteran was under a lot of stress and
should continue in his therapy and with his medications.
Based on the June 1991 VA psychiatric examination report, the
RO proposed a reduction of the veteran's 100 percent
evaluation for PTSD in November 1991. Consequently, a May
1992 rating decision reduced the evaluation from 100 percent
to 50 percent, effective August 1, 1992. This rating was
assigned pursuant to Diagnostic Code 9411. The RO concluded
that there was "no credible medical evidence supporting
continuation of total evaluation for PTSD in view of the
veteran's self-employment."
The veteran was notified of the above determination and of
his right to appeal by a letter dated in May 1992. Although
he filed a notice of disagreement, and the RO furnished a
statement of the case in August 1992, the veteran did not
submit a substantive appeal.
In a July 1993 VA examination report, the physician who
performed the June 1991 examination commented that he was
"surprised" to discover that the RO inaccurately
interpreted his June 1991 assessment. He noted that because
the veteran was working, the RO apparently determined that he
was less than fully disabled. The physician reported that
the veteran was working in an essentially sheltered
environment where he reported to his cousin, who is the
president of the company. He concluded that the veteran
would be unable to work in any other setting.
The RO continued the 50 percent evaluation of the veteran's
service-connected PTSD in November 1993, and November 1995.
An October 1996 VA examination report notes a diagnosis of
PTSD, major depression, and panic disorder. The veteran's
GAF score was 40. Later that month, the RO granted a 70
percent evaluation for the veteran's service-connected PTSD,
and assigned a September 13, 1995, effective date.
Following a December 1996 personal hearing, the RO granted a
100 percent evaluation for the veteran's PTSD in February
1997, effective September 13, 1995.
In an April 1998 claim, the veteran alleged that the May 1992
rating decision reducing the evaluation assigned for his
service-connected PTSD from 100 percent to 50 percent
constituted CUE. An October 1998 RO decision determined that
no revision of the May 1992 decision was warranted. The
veteran filed a notice of disagreement with this decision in
November 1998, and submitted a substantive appeal the
following month, perfecting his appeal.
During a December 1998 hearing, the veteran reiterated his
contention that the May 1992 rating decision contained CUE.
The following month, the RO again found that a revision of
the May 1992 decision was not warranted.
During a January 2000 Central Office hearing, the veteran
asserted that there was CUE in the May 1992 rating action.
He contended that the RO failed to consider the provisions of
38 C.F.R. § 3.343, and maintained that it was error to reduce
the award for his service-connected disability without
establishing material improvement.
Analysis
The Board initially notes that the unappealed May 1992 rating
decision became final. 38 U.S.C.A. § 7105 (West 1991);
38 C.F.R. § 19.193 (1991) (now 38 C.F.R. § 20.1103 (1999).
Previous determinations which are final and binding,
including decisions of service connection, degree of
disability, age, marriage, relationship, service, dependency,
line of duty, and other issues, will be accepted as correct
in the absence of clear and unmistakable error. Where
evidence establishes such error, the prior decision will be
reversed or amended. 38 C.F.R. § 3.105(a).
Total disability ratings when warranted by the severity of
the condition and not granted purely because of hospital,
surgical or home treatment, or individual unemployability
will not be reduced, in the absence of clear error, without
examination showing material improvement in physical or
mental condition. Examination reports showing material
improvement must be evaluated in conjunction with all the
facts of record, and consideration must be given particularly
to whether the veteran attained improvement under the
ordinary conditions of life, i.e., while working or actively
seeking work or whether the symptoms had been brought under
control by prolonged rest, or generally, by following a
regimen which precludes work, and, if the latter, reduction
from total disability ratings will not be considered pending
reexamination after a period of employment (3 to 6 months).
38 C.F.R. § 3.343(a).
A 100 percent evaluation may be assigned for PTSD where the
attitudes of all contacts except the most intimate are so
adversely affected as to result in virtual isolation in the
community, where there are totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost daily activities such as fantasy,
confusion, panic, and explosions of aggressive energy
resulting in profound retreat from mature behavior, and where
the veteran is demonstrably unable to obtain or retain
employment. 38 C.F.R. Part 4, Diagnostic Code 9411 (as in
effect in 1992).
In order to uphold the reduction of the veteran's 100 percent
evaluation, the evidence must establish that there was
material improvement in his condition under the ordinary
conditions of life, that is, while working or actively
seeking work. 38 C.F.R. § 3.343(a). A comparison between
the current examinations and the previous examinations is
undertaken in order to determine if material improvement is
shown. Tucker v. Derwinski, 2 Vet. App. 201, 204 (1992) (per
curiam). A conclusion that material improvement was
demonstrated when the examinations are compared can not be
made in this case.
During the June 1991 VA examination which provided the basis
for the reduction, the veteran reported that the
symptomatology associated with his service-connected PTSD was
"either worsening or staying the same." In addition, the
VA examiner specifically found that the veteran's PTSD was
"the same, if not to a greater degree" than during the
previous VA examination in April 1989.
The Board notes that the Court has held that the failure to
consider and apply the provisions of 38 C.F.R. § 3.343(a), if
applicable, renders a rating decision void ab initio, as not
in accordance with law. Dofflemyer v. Derwinski, 2 Vet. App.
277, 282 (1992).
In this case, as shown by the medical evidence reported
above, the Board finds that the 100 percent schedular
evaluation was reduced when the evidence did not show
material improvement. There is no indication in the May 1992
rating action that the RO considered 38 C.F.R. § 3.343(a).
The RO failed to demonstrate that material improvement in the
veteran's disability had been shown. This failure can not be
cured by subsequent examination or action by the VA. Rather,
the Board must look only to the evidence of record at the
time of the reduction, and determine whether that action was
appropriate. The Board finds that the failure to consider,
as required, the provisions of 38 C.F.R. § 3.343(a)
constitutes CUE. Accordingly, restoration of the 100 percent
schedular rating for PTSD is warranted, effective August 1,
1992.
ORDER
There was CUE in the May 20, 1992 rating decision which
reduced the 100 percent evaluation in effect for PTSD, and
the 100 percent evaluation is restored, effective August 1,
1992.
Richard B. Frank
Member, Board of Veterans' Appeals